Kerr concluded with a vehement attack on the Illinois Chamber of Commerce:
“Why, then, you ask, are these five indicted? Because the prosecuting authorities of the State of Illinois yielded to private influences. Their place and their status is taken by a private organization composed of men of great wealth, the Illinois Chamber of Commerce. Actuated by a desire for vengeance, eager to do anything that will help to destroy organized labor, the Chamber of Commerce is the organization that prosecutes in this case. You and you alone stand between these defendants and this cry for revenge. Let the law be your guide, let the facts be your support, and let justice be your product. We want nothing more.”
(Under the title, “The Other Side of Herrin,” Kerr’s speech was printed as a supplement to the December 16 issue of The Illinois Miner, and widely circulated in an effort to counteract the propaganda of the National Coal Association and similar organizations.)
The opening statements took up the morning of the 13th. In the afternoon the state put its first witness on the stand. The testimony was routine, but on the following day the prosecution edged toward the heart of its case. One witness identified Joe Carnaghi as a member of the crowd that marched the six prisoners to the Herrin cemetery; another placed Leva Mann in the same gathering. A third—George Harrison—testified that he saw two men, both armed, come out of the woods on his farm where he later found three dead strikebreakers, and admitted that he knew one of them.
“Look around the courtroom,” he was told, “and see if you can point out such a man.”
Harrison pointed to Bert Grace, in the act of shooting a stream of tobacco juice at a cuspidor. “There is one,” he said.
Friday, December 15—the third day of the trial—offered drama. Harrison’s son Fred, a student at the University of Illinois, corroborated his father by naming Bert Grace as the man who had come from the woods on the morning of June 22, pistol in hand, twenty minutes after shots were fired there. William Goodman, a farmer who had known Otis Clark for twenty-five years, told of watching the mob bring the prisoners along the road from the mine to Crenshaw Crossing.
QUESTION (by State’s Attorney Duty): “Did you see anyone in the crowd you recognized?”
ANSWER: “Yes, I saw Otis Clark, who sits right over there.” [Goodman pointed to Clark.]
QUESTION: “What did he have?”
ANSWER: “A big, heavy pistol.”
QUESTION: “Did you hear Clark say anything?”
ANSWER: “Yes, he said, ‘We ought to take these men out and kill them and stop the breed.’ ”
In the afternoon, Don Ewing held the stand for several hours. He was the Chicago newspaperman who had been prevented from giving water to the men who died at the Herrin cemetery. Because he was one of the two state’s witnesses who connected any of the defendants with the death of Howard Hoffman, his testimony was of crucial importance. Under Duty’s questioning he related how he had reached Marion on the morning of June 22, hired an automobile, and proceeded to the strip mine, which he left almost immediately for the Herrin cemetery. There he found the six prisoners lying on the road, roped together. One of them, bleeding from a gash in the neck and a bullet hole in the abdomen, begged for water. When Ewing tried to give him a drink a member of the mob, armed with a rifle or shotgun, held him off.
Could he identify the wounded man who had asked for water? He could: he had seen him that afternoon at the Herrin hospital, where he had learned that his name was Howard Hoffman.
Could he identify the man with the gun who threatened him? Pointing a steady finger, and speaking in a clear, firm voice, Ewing answered: “Bert Grace.” No sound came from the crowded courtroom as Grace stared back at his accuser.
Cross-examination, detailed and severe, failed to shake Ewing’s testimony in any material particular.
On Monday morning George Nelson, who lived at Moake Crossing, identified Otis Clark as one of the two men who led McDowell down the road to his death; another witness pointed him out as the leader who had urged the mob to kill the prisoners and stop the breed. In the afternoon Dr. O. F. Shipman, an eye-ear-nose-and-throat specialist of Herrin, took the stand. Again there was drama, for Shipman was the second—and last—state’s witness to establish a direct connection between the defendants and the death of Hoffman.
The physician said that on the morning of June 22 he had walked from his office toward the cemetery. Near the schoolhouse he met the mob with their prisoners, several of them bleeding and seriously injured. He described the march to the cemetery, the roping of the captives, the shooting when one of them fell.
QUESTION: “Did you see anyone you knew?”
ANSWER: “I saw faces of men whom I afterwards identified as Joe Carnaghi, Percy Hall, Leva Mann and Jim Galligan. I was within twenty or thirty feet of them. All had revolvers.”
QUESTION: “How did you identify Howard Hoffman, around whose neck you say the rope was tied first?”
ANSWER: “I saw him in the Herrin hospital and learned his name there.”
QUESTION: “Did you see who shot Hoffman?”
ANSWER: “I saw two.”
QUESTION: “Who were they?”
ANSWER: “One man whose name I do not know, but who was about five feet eight inches high, weighed about 160 to 170 pounds and had a wart or mole on the right side of his nose, under the eye. He shot every man, borrowing a gun from the crowd to finish up. A boy gave him some cartridges and he reloaded his gun and shot some more. He shot Hoffman in the neck. Hoffman raised up his head and said, ‘Men, men, what are you doing?’ ”
QUESTION: “Who else shot Hoffman?”
ANSWER: “Joe Carnaghi, whom I was close enough to, to touch, pulled an automatic revolver from his pocket and shot a round, then reloaded.”
The next two days were devoted to the testimony of four survivors of the massacre—Robert Officer (Lester’s timekeeper), and William Cairns, Patrick O’Rourke, and Bernard Jones, all guards. They told detailed and explicit stories of the morning of June 22, but only Cairns and Jones could identify any of the defendants as participants in the killings. Cairns placed Otis Clark and Peter Hiller among the mob who took the prisoners from the mine, and accused Hiller of murder at the powerhouse woods. He himself was wounded when he tried to get through the fence. Then, he continued:
“I fell down on my side. I saw one of our men standing by a tree bleeding and yelling. Every time he hollered someone hit him again. Finally I saw a heavyset man walk up to him and say, ‘You big son-of-a-bitch, we can kill you.’ He then fired a shot into the man and the man fell down by the side of the tree.”
QUESTION: “Who was the man that fired that shot?”
ANSWER: “There he is.” [Cairns pointed to Peter Hiller.]
Jones testified that Clark was the man who, at Crenshaw Crossing, urged that the scabs be killed, and that he was one of the two men who led McDowell away at Moake Crossing.
At 2.10 p.m. on Thursday, December 21, after having called thirty-nine witnesses, the state rested. Court was then dismissed until the following morning. Chief counsel Kerr took advantage of the recess to outline for the press the tactics of the defense. He and his associates would prove that the guards and gunmen were the aggressors, and that they brought the fatal attack upon themselves. The defense would prove that Ewing’s account of the water incident at the cemetery was fictitious, and that several of the other state’s witnesses testified falsely. And they would prove, by many of the most reliable citizens of the county, that the men now on trial could have had no connection with the killings.
The defense followed Kerr’s forecast without deviation. As soon as court convened on the morning of December 22 two witnesses were called to testify to the closing of the road, one of the original causes of community resentment. A third described the provocative acts of Lester’s guards. That afternoon four members of the Conroy family—father, mother, son, and daughter—related what had happened on the afternoon before the massacre. According to John,
the son, whose story was most explicit, the crowd gathered outside the mine between 1.30 and 2.00 p.m., were fired upon by the guards, and returned the fire. The witness saw a white flag raised on a pile of overburden between 5.30 and 6.00 p.m., but insisted that the guards continued their firing. He saw no one whom he knew with a gun. After the Conroys had finished, Ed Crenshaw, who also lived near the mine, described the killing of Jordie Henderson. According to his story, Henderson was lying on the ground about a hundred yards from the Crenshaw house, his head raised so that he could watch the shooting from the mine. Suddenly he slumped, rolled on his side, and lay still. He was unarmed, Crenshaw said, when he was shot.
The next morning the judge announced that court would recess until January 2, 1923.
For three days after the trial was resumed witnesses told of the provocations of the guards—their interference with berry pickers, their roughness, their abusive language. Others described the firearms and ammunition which they had seen in the mine before the attack. Still others swore that on the afternoon of June 21 the first shots were fired from the mine, and that the shooting continued after the strikebreakers had hoisted their white flag.
By January 5 the defense had completed the testimony by which it sought to show that the striking miners were justified in attacking the mine. Now it turned to alibis. On that day alone fifteen witnesses took the stand to swear that they had watched the “death march” on the morning of the 22nd, that they knew all the defendants, and that they saw none of them in the mob. Similar testimony took up the next several days. Then the defense became specific. Kerr and his associates started with Joe Carnaghi. A Herrin woman who ran a small dairy testified that she had sold him milk between 7.00 and 7.30 on the morning of June 22; three others corroborated her story. According to the next two witnesses, Carnaghi was working in his garden between 7.45 and 8.15. Two people saw him pulling a cake of ice along the street in a child’s wagon before 9.00; five others placed him in downtown Herrin not later than 9.00. One of these, F. L. Baucher, picked up Carnaghi and a companion and drove them to the Herrin cemetery. By the time of their arrival the Lester men were lying in the road, dead. From there the three drove to the powerhouse where, of course, only dead bodies were to be found.
Carnaghi’s alibi was the most elaborate, but an ample number of witnesses testified on behalf of the other defendants. Six people—three men and three women—had seen Leva Mann near the line of march, but all were certain that he had not been in the mob. Bert Grace was on the public square in Marion practically all morning on the 22nd. Peter Hiller and four friends had driven from Herrin to the powerhouse, had seen the column approaching, had turned around and driven back to Herrin. Otis Clark had been with the mob at Crenshaw Crossing, but instead of wanting to kill the scabs and stop the breed, he was the man who had said that if there was to be any killing, he was through. So said nine men under oath.
Its alibis offered, the defense spent four days in an effort to impugn the state’s witnesses, particularly William Goodman and Dr. O. F. Shipman. According to defense evidence, their reputation for veracity was execrable, they were prejudiced, and Shipman at least was moved by desire for a reward.
The last defense witness stepped from the stand late in the afternoon on January 16. Kerr offered to send the case to the jury at once, without argument and without instructions. Otis Glenn, Assistant Attorney General, objected strenuously: the state wanted to review the evidence and proposed that each side take six hours for argument. While the lawyers wrangled, the judge intervened to say that he would call the case at ten o’clock the next morning and send it to the jury when there were no more arguments to be made.
Shortly after ten, Duty began the argument for the prosecution. For two hours he reviewed the evidence, recalling particularly damaging testimony offered by the state’s witnesses, ridiculing the alibis of the defendants, stressing the brutality of the mob’s actions. “If these men,” he said, pointing to the defendants, “had any part in the conspiracy, whether they fired a shot or not, they were guilty of murder.… There are no mitigating circumstances. There was no self-defense.…” He concluded by appealing to the jury to do its duty.
When court convened at two o’clock Kerr announced that the defense would make no argument, thus cutting off further argument on the part of the state. Judge Hartwell announced a recess until the following morning.
On Thursday, the 18th of January, well over two months since the trial had begun, spectators who crowded the dingy courtroom to capacity listened intently while the judge delivered his charge. At 11.15 the jurors, their faces solemn, filed into the jury room.
Hours passed. Friends and families of the prisoners sat in groups in the courtroom, now strangely silent, and talked in whispers. Late into the night, in spite of the winter weather, people stood on the walks around the public square, hoping to divine the meaning of the lights that burned in the jury room. Soon after dawn they were on the streets again, joined now by miners dressed in their working clothes, their faces streaked with the black dust of the pits. Still no word came from the courthouse.
At 1.30 p.m., twenty-six hours after the jury had received the case, word spread that a verdict had been reached. The groups on the streets raced to the courtroom. There the judge, already on the bench, warned that there must be no demonstration.
The jury filed in; the foreman handed Hartwell a slip of paper. Slowly, evenly, the judge read:
“Otis Clark, not guilty. Leva Mann, not guilty. Peter Hiller, not guilty. Joe Carnaghi, not guilty. Bert Grace, not guilty.”
No sound came from the spectators—only the shuffling of feet as they filed out and down the steps. The jurymen, unable to realize that their long ordeal was over, wandered back to the jury room.
That afternoon came post mortems. “It was a fair and orderly trial,” Judge Hartwell said. “The jury is the judge of the facts and they have passed upon them. I have nothing to say, except that I did the best I could to give and believe I did give a fair and impartial trial.”
Defense counsel, in a written statement, emphasized the point that Kerr had made in his opening statement:
The defense was directed against the vicious and unwarranted, brutal and murderous use of a private army of gunmen. If this trial has taught the lesson well that hereafter the weapons of the employers’ private army shall not be directed against human breasts, then the trial with all its sacrifices has not been in vain.… It was the only righteous verdict which could have been rendered against an army of invaders.
C. W. Middlekauff, for the state, was disappointed but determined. The jury had been misled, he asserted, into considering the case as a controversy between Lester’s strikebreakers and the miners’ union, while the real issue was whether the law of the land should prevail in Williamson County. The prosecution would proceed with the next case. “The issues involved in this whole transaction are important,” he concluded; “the people of the entire United States are interested in their solution. We are desirous of putting it square up to another jury in Williamson County whether they will be ruled by the laws of Illinois or whether the domination of the mob shall prevail.…”
Over the nation editors echoed Middlekauff’s comments, though without his restraint. “The acquittal … is denounced by the daily press from one end of the country to the other as a travesty upon justice,” said the Literary Digest, “the editors rising almost as one man to point the finger of scorn at the town of Herrin and the County of Williamson, in the State of Illinois.” Herrin was “an unconquered province of lawlessness,” “a stench in the nostrils of humanity” that was “about to complete its secession from the United States of America.” The people of the county had proved that they chose “to condone murder and shield assassins,” and were content to leave “the stain of atrocious murder” on the annals of the state.
Labor papers might—and did—call the jury’s verdict “a vindication of the traditional American right of self-defense” and “a crushing c
ondemnation of the practice of ‘protecting property’ with privately employed gunmen who usurp the police power of the State”; they might assert that it proved that liberty still lived in the United States; they might ask why there was not some punishment that could be dealt out to an “outlaw operator” who invaded “a peaceable and law-abiding county” and goaded it to violence. Editorial opinions such as these converted few readers. The vast majority continued to hold with the Illinois Chamber of Commerce, dismayed but unbowed, when it demanded in its official publication:
Every man still under indictment should be prosecuted as vigorously as those who have just been acquitted.… Let nothing stand in the way of the prosecution of every man suspected of having any part in that damnable outrage.
For its second case, the state chose to prosecute those who had been indicted for the murder of Antonio Molkovich, a cook who had lost his life at the powerhouse woods. Perhaps the fact that Molkovich, though of Russian birth, had served in the United States Army during the World War was counted on to nullify some of the prejudice against strikebreakers. The grand jury had returned eighteen indictments for his murder, but on the first day of the trial the state moved to nol-pros all but six. Otis Clark and Bert Grace again stood in jeopardy; with them, at the table for the defendants, sat Hugh Willis, Phillip Fontanetta, Oscar Howard, and James Brown, a Negro.
When the trial began on February 12, 1923, the appearance of the courtroom contrasted sharply with what it had looked like when the first trial opened three months earlier. The same cracked plaster threatened to fall at any moment; the same flyspecked picture of the President stared from the wall, the same battered cuspidors stood in corners, but instead of hundreds of spectators a mere handful lounged in boredom while a winter rain beat against the windows. Three reporters—two for local papers and one for the Illinois Miner—sat at the table that had been crowded with metropolitan correspondents.
Bloody Williamson Page 6
